03 December, 2011

"Speaking in the House of Commons on Wednesday, Foreign Secretary William Hague described the attack on the British Embassy in Iran on 29 November as "a breach of international responsibilities of which any nation should be ashamed." The Foreign Secretary said that the attack, in which Embassy buildings were vandalised and looted by demonstrators, was a grave violation of the Vienna Convention which states that a host state is required to protect the premises of a diplomatic mission against any intrusion, damage or disturbance. The Foreign Secretary expressed his gratitude for the strong statements of concern and support from the United States, the European Union, Germany, Poland, Russia, China and many other nations.

The British Embassy in Tehran has now been closed. All Iranian diplomatic staff have been ordered to leave the United Kingdom."

15 November, 2011

Jonathan Sumption QC delivered the F A Mann Lecture at Lincoln's Inn on 9th November 2011. His theme was "Judicial and Political Decision-Making: The Uncertain Boundary." Mr Sumption has been appointed a Justice of the UK Supreme court but has not yet taken up the appointment. He is likely to do so in 2012. In the lecture, Mr Sumption looks at the extent of judicial review and asks whether the judiciary have now trespassed on to areas of policy which should be left to the appointed decision-maker.

30 October, 2011

The Commonwealth Heads of Government held in Australia has drawn to a close.

One interesting development is that the 16 nations of which H.M. The Queen is Head of State have agreed to alter the Royal Succession so that male primogeniture will no longer apply. This proposal is explained on the No.10 website.

22 October, 2011

The death has been reported of the Italian jurist Antonio Cassese - see Special Tribunal for the Lebanon . In recent times, few lawyers have done so much to develop a corpus of international criminal law. His text - "International Criminal Law" (here) is a masterful analysis of the current state of the law. See also his text "International Law" - Oxford University Press.

In 1993, Cassese became the first President of the International Criminal Tribunal for Yugoslavia (ICTY). The Tribunal's website states:

Judge Antonio Cassese (Italy)President of the ICTY from 1993 to 1997

Born: 1937, Atripalda, Italy

Judge Antonio Cassese was the Tribunal’s first President, holding the position between 1993 and 1997. In those uncharted early years he was one of the key persons who won the necessary political and financial support for the Tribunal and turned it from a court on paper to a functioning international judicial institution. After his tenure as President, Judge Cassese

29 September, 2011

Following on from the executions of Troy Davis (pictured) in Georgia, USA, an article in The New Republic suggests that abolitionists may be closer to their goal than they think. This is a well considered article by Carol S. Steiker (Professor of Law at Harvard) and Jordan M. Steiker (of the University of Texas Law school).

04 August, 2011

Yugoslavia - In July, it was reported that the last of the individuals wanted by the International Criminal Tribunal for Former Yugoslavia (ICTY) was captured. The Guardian 4th August 2011 - "The hunt for former Yugoslavia's war criminals: mission completed" The recent appearance at The Hague of Goran Hadžíc marks the end of a hunt commenced in 1993 for 161 war crimes suspects. He was captured in Fruska Gora National Park (60 km west of Belgrade) on 20th July. It has been a lengthy and difficult process and has suffered from more than minimal political obstruction. The persistency of the ICTY prosecutor is to be commended.

In the U.K., on 6th July 2010, the government announced an inquiry into allegations that British personnel were complicit in the torture of persons abroad. The inquiry is under the Chairmanship of Sir Peter Gibson (a former Lord Justice of Appeal). However, the inquiry has been dogged by controversy ever since its conception. Civil Liberties organisations such as Liberty and Reprieve have been highly critical both in relation to the appointment of Gibson (who is the Intelligence Services Commissioner) and also the secrecy of the inquiry and the inability to question officials and operatives. A further criticism is that it will be the Cabinet Secretary who decides what can be published and not the judge.

The Telegraph 4th August reported that some in the region of £12m has been paid by the British government to certain individuals held at Guantanamo Bay. This money has been paid under a confidential settlement between the government and the victims.

Without the involvement of bodies such as Liberty, the Gibson Inquiry is highly unlikely to command any public confidence.

Sir Peter Gibson has been Intelligence Services Commissioner since 2006 and is in his second term of office which expires on 31st March 2012.

03 June, 2011

"I hope the very mention of the name “Srebrenica” will remind every child in the world that pride in our own religious and ethnic heritage does not require or permit us to dehumanize or kill those who are different. I hope and pray that Srebrenica will be for all the world a sober reminder of our common humanity" - President Clinton on 20th September 2003.

The International Criminal Tribunal for Former Yugoslavia (ICTY) has already concluded that the 1995 events at Srebrenica amounted to the crime of genocide - see Radislav Krstić appeal. The International Court of Justice agreed with this in 2007 when the ICJ held that Serbia had violated its obligation to prevent genocide (12 votes to 3) and also that Serbia had failed in its obligation to transfer Mladic for trial (14 votes to 1). Suspicions remain that Serbia had sheltered Mladic even after the ICJ ruling.

Ratko Mladic now stands indicted for his alleged part in the appalling events which are described here.

In 1966, the British philosopher and mathematician Lord Russell (1872-1970) set up, along with Jean Paul Sartre, a tribunal to consider United States Foreign Policy and Military Intervention in Vietnam. Representatives of 18 countries participated and hearings were held in 1967 in Stockholm and Copenhagen. Twenty-five notable persons formed the tribunal including a number of Nobel Prize winners. Neither Vietnam nor the United States of America participated and the tribunal was largely ignored by the media. The Tribunal reached, unanimously, a number of verdicts finding against the United States on matters such as the use of weaponry forbidden by the laws of war, inhumane treatment of prisoners etc - see Russell-Sarte Tribunal on Vietnam. It was inevitable that the tribunal was criticised as a "Kangaroo Court" by those who had the opportunity to participate but declined to do so. Of course, the tribunal had no legal force and could not try particular individuals.

This form of tribunal - essentially a private enterprise - contrasts with the approach to some events such as the International Criminal tribunal for the Former Yugoslavia (ICTY).

This idea of a Tribunal has been adopted recently in relation to events which it is said took place in IRAN in the 1980s, a decade in which there was major war between Iraq and Iran resulting in the loss of in excess of half a million lives. The war lasted until August 1988 when it came to an end as a result of United Nations effort and Security Council Resolution 598. However, in the second half of 1988 there were many executions in Iran - some estimates say in excess of 4500. Those executed appear to be political dissidents who were opposed to the regime of Ayatollah Khomeini. Writing in The Guardian on 7th June 2010, Geoffrey Robertson QC called upon the United Nations to enforce international law by setting up a court to try the perpetrators of the massacres. Mr Robertson has produced a detailed report on the massacres.

In his Guardian article, Robertson stated that - "Most of the judges and officials who implemented the fatwa are still in high office in Tehran – under a supreme leader who, when asked about killing prisoners replied: "Do you think we should have given them sweets?"

A Tribunal - (intended to operate on similar lines to the Russell-Sartre Tribunal) - has been set up and John Cooper QC has become Chairman of a Steering Committee. The February 2011 Press release explains the way it is hoped to develop the Tribunal's work. John Cooper stated - “The work of the Steering Committee in creating, advising and facilitating the establishment of the Iran Tribunal will be vital if due process is to be observed at the future hearings. We are determined that the Tribunal discovers the truth about what happened to thousands of Iranian people and that justice is finally done.”

The HOME Page of the Tribunal sets out the background and the aims of the Tribunal and ways of supporting the tribunal may also be seen.

An All Party Parliamentary Group (APPG) continues to beaver away to try to unearth the truth about any British involvement in Extraordinary Rendition. The APPG - acting, it appears as "concerned citizens", has made requests to the Ministry of Defence for information. Such requests are possible under the Freedom of Information Act 2000 (FOI) but the Act contains several exemptions under which information can be withheld.

An appeal against the Ministry of Defence's refusal to release certain information has been heard by the Upper Tribunal (Administrative Appeals Chamber) comprising Blake J, Andrew Bartlett QC and Rosalind Tatum. The APPG was successful in part. See the judgment.

Addendum 16th May: It is reported by The Independent 15th May that Sir Peter Gibson's Inquiry - (into allegations that British personnel were complicit in the torture of detainees) - will not examine the question of "Extraordinary Rendition." Andrew Tyrie MP - chair of the APPG - condemns this as doing just half the job. Failure to properly examine this issue will inevitably result in public criticism and allegations of cover up.

Addendum 10th June: It is now reported that the Inquiry will consider rendition.

In particular, his conduct of the trial of Adolf Eichmann will long stand as an example of how a fair trial can be achieved even when the defendant is an arch-enemy of the State. The 14 week trial was held in 1961 and, in accordance with Israeli law, three judges sat - Moshe Landau, Benjamin Halevy and Yitzhak Raveh. Sentence of death was passed in December 1961 and carried out on 31st May 1962. Eichmann's ashes were scattered in the Mediterranean Sea.

A particularly striking article about Landau may be seen at the Ruthfully Yours blog.

Throughout his remarkable career in the law, Landau stands out as a truly independently minded judge who paid meticulous attention to detail. Above all, he had that one absolutely essential characteristic for a judge: courage.

04 May, 2011

“Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan,” .... “A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama bin Laden and took custody of his body.”

According to the US Government, Osama Bin Laden was the mastermind behind the attacks on America on 11th September 2001 - usually abbreviated to 9/11. A number of "conspiracy theories" have grown up around these events.

15 April, 2011

On 15th April 2011, judgment was delivered by the ICTY in the cases of Gotovina, Markač and Čermak - See the Tribunal's website and the summary of the judgment below. Gotovina and Markač now stand convicted of several crimes against humanity and violations of the laws and customs of war.

Čermak was acquitted on all counts. Markač was acquitted on one count of forcible transfer (a crime against humanity). Gotovina was sentenced to 24 years imprisonment (less 1956 days for time already in custody). Markač received 18 years (less 1477 days).

12 April, 2011

Clarence Carter is the latest person to be executed in the U.S.A. - this time in Ohio. There have been 12 executions in the USA this year and 1246 since executions resumed on 17th January 1977.

The details of executions carried in Ohio in recent times may be seen on the Ohio Department of Rehabilitation and Correction website. A list of scheduled executions is also published. Ohio has recently changed to the use of pentobarbital.

It is interesting that a nation which carries out so many executions also publishes (under Federal Law) a Human Rights Report which examines the state of human rights in other nations. The 2010 report may be read via the Opinio Juris website.

Addendum: On 17th May 2011, Ohio executed Daniel Lee Bedford. He was the the 45th to be executed in Ohio since 1999 and the 1250th in the USA since capital punishment resumed on 17th January 1977.

29 March, 2011

The U.S. State of Arizona has executed Eric John King by lethal injection for the murders, committed in 1987, of two men in a store. The case has a number of features which are not uncommon among prisoners executed in the USA. He came from a poor background; had an alcoholic and abusive father; got into drugs and alcohol by the age of 9; his mother held a gun to his head when he was 10; he left home at age 15 and got into a life of crime. He was convicted in 1991 - on evidence which ought to have given the appellate systems cause for serious concern - and sentenced to death. He was therefore held under sentence of death for 20 years. On 29th March 2011, Arizona's Department of Corrections website indicated that (including King) there were 131 prisoners on "death row." Since 1993, Arizona has executed 22 people by lethal injection. Prior to that the gas chamber was used and, in the early part of the 20th century, hanging. Surely it ought to be plain from such statistics that capital punishment does not actually act as a deterrent to crime.

Addendum 1st April: In the State of Alabama, William Glenn Boyd was executed by lethal injection on 31st March 2011. He, along with Robert Milstead, was convicted of two murders committed in 1986. The jury recommended life imprisonment without parole. That sentence was imposed on Milstead because he testified against Boyd in exchange for avoiding the death penalty.

28 March, 2011

Amnesty International has issued a report on the use of the Death Penalty in 2010 - see Amnesty News Item and the report itself. The report indicates some reduction in the use of the Death Penalty though a considerable number of countries remain committed to its use - see The Guardian 28th March 2011 for a useful summary.

Some extracts from the main report:

In July 2010 the London-based Privy Council commuted the sentence of Earlin White, who had been sentenced to death for murder in Belize in 2003. In its judgement, the Privy Council indicated one reason for the commutation was the lack of assessment of the social welfare and psychiatric condition of the defendant at the time of sentencing. In June 2010 however, the Caribbean Court of Justice Act came into effect in Belize, renouncing the Privy Council and establishing the Caribbean Court of Justice as the final Court of Appeal for all civil and criminal cases in the country. Transitional provisions allow for pending appeals to be considered by the Privy Council.

Executions were recorded in the USA in 2010 as follows: Texas (17), Ohio (8), Alabama (5), Mississippi (3), Oklahoma (3), Virginia (3), Georgia (2), Arizona (1), Florida (1), Louisiana (1), Utah (1) and Washington (1). Once again, the majority of executions in the USA were carried out in a handful of states. Utah and Washington carried out their first executions since 1999 and 2001 respectively.

In 2010, Amnesty International was also concerned by the execution in the USA of people with significant mental impairments or after trials during which the juries did not hear available mitigating evidence at the sentencing phase. Holly Wood, a 50-year-old African American man with significant mental impairments, was executed by lethal injection in Alabama on the evening of 9 September. He had spent 16 years on death row. The presentation of mitigating evidence at the sentencing was minimal. In particular, there was no evidence at all presented about Holly Wood's mental ability despite the lawyers being in possession of an expert report indicating that Wood operated, “at most, in the borderline range of intellectual functioning”. Four federal judges on three courts concluded that he was denied adequate legal representation at the sentencing stage of his 1994 trial.

Jeffrey Landrigan, a 50-year-old Native American man, was executed in Arizona, on 26 October. He had been sentenced to death for the 1989 murder of Chester Dyer. At his trial in 1990, his lawyer did not present any mitigating evidence on his background of abuse and deprivation or its effects on him. In 2007, the retired trial judge said that she would not have passed a death sentence if she had heard such mitigating evidence, especially the sort of expert mental health evidence that had been presented during the appeals process. The former judge was among witnesses who appeared at a clemency hearing in front of the Arizona Board of Executive Clemency on 22 October 2010. She told the board that in her view Jeffrey Landrigan should have received a life sentence.

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Sodium Thiopental exports from the U.K.

A nationwide shortage of sodium thiopental, one of the three drugs used to execute prisoners by lethal injection led to the suspension of some executions at the end of the year. By the end of 2010, the pharmaceutical company Hospira, the sole manufacturer or supplier of this drug in the USA, had begun discussions with the Italian authorities about Hospira’s intention to resume production of the drug at its plant in Italy.29 On 25 October, a day before Jeffrey Landrigan’s execution, the Arizona Attorney General revealed that the state had obtained sodium thiopental from an unidentified source in the United Kingdom (UK). Following campaigning by abolitionist groups, on 6 January 2011, the UK Secretary of State for Business Innovation and Skills made a statement to the High Court of Justice indicating that the UK Department for Business Innovation and Skills would issue an order under s. 6 of the Export Control Act 2002 (ECA) controlling the export of sodium thiopental to the USA.

The Order made by the U.K. is the Export Control (Amendment) (No. 3) Order 2010 which will remain in force until 28th November 2011. It is not clear whether the British government will then issue a new Order. The making of this Order does not necessarily prevent export of this drug but its export has to be licensed by the British government.

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Given difficulties with obtaining sodium thiopental it seems that some US States have turned to pentobarbital - see REPRIEVE 24th March which calls on the Danish company LUNDBECK not to supply this drug.

25 March, 2011

The Foreign and Commonwealth Office (FCO) has issued guidance to its staff working overseas about the reporting of torture or mistreatment which they may encounter in the course of their duties. The guidance makes it clear that - "Every member of staff has an individual responsibility to report immediately allegations and/or concerns about suspected torture or cruel, inhuman or degrading treatment or punishment (CIDT) that occurs overseas, so that such allegations and/or concerns can be acted upon appropriately."

16 March, 2011

In March 1988 Halabja was subjected to an horrific gas attack which killed some 5000 people and caused severe injury to many more. On 25th January 2010 the man who ordered this attack - Ali Hassan Al Majid (a cousin of Saddam Hussein) - was executed in Baghdad. The full horror is well recorded by the Gallery of Muslim Massacres website. The City of Manchester, in Northern England, has a modest memorial to Halabja 16th March 1988. It is a tree - (pictured) - and a small memorial stone. They are located in a busy part of the city centre. Today, 16th March 2011, a small group of people met there and placed flowers in remembrance of those who had died.

The Halabja massacre took place toward the end of the Iraq-Iran War (September 1980-August 1988). Of course, much was to unfold before the Saddam Hussein regime was finally brought to an end as a result of military action against Iraq. There was the action (under United Nations mandate) to remove Iraqi Forces from Kuwait - (August 1990 to February 1991). Later there was the 2003 military invasion of Iraq by Coalition Forces. This action remains highly controversial and, in the U.K., has been the subject of a number of inquiries the latest of which is the Chilcot Inquiry which has been referred to in several posts on this blog. The coalition action against Iraq raised numerous issues in international law and the justification for military action by the U.K. remains the subject of intense debate. Nevertheless, Halabja is a constant reminder of the abysmal regime headed by Saddam Hussein.

The Responsibility to Protect (UN Security Council Resolution 1674/2006) emerged as one outcome of these and other atrocious events.

03 March, 2011

On Thursday 3 March 2011 announced the opening of an investigation in Libya.

United Nations Security Council Resolution 1970 (2011) provides jurisdiction to the International Criminal Court over the situation in Libya since 15 February 2011. As per the Rome Statute, the Prosecutor shall proceed with an investigation unless there is no reasonable basis to believe that crimes falling under the ICC jurisdiction have been committed.

Following a preliminary examination of available information, the Prosecutor reached the conclusion that an investigation is warranted.

The Office of the Prosecutor is liaising with the United Nations, the African Union, the Arab League, as well as States. Additionally, the Prosecutor will also request information from other sources including from Interpol who will provide assistance. The Prosecutor will act independently and impartially.

The next step is for the Prosecutor to present his case to ICC judges who will then decide whether or not to issue arrest warrants based on the evidence.

Addendum - 18th March: On 26th February 2011 the U.N. Security Council passed Resolution 1970 (2011) addressing recent events in Africa. On 17th March, the Security Council - by a vote of 10 to 0 (with 5 abstentions) - passed Resolution 1973 (2011). See U.N. News and also resolution 1973 may be read at The Guardian 18th March.

23 February, 2011

Back in July 2010 the government announced an inquiry into allegations of British complicity in torture - see Watching the Law. Questions were raised at the time about this inquiry - see REPRIEVE. These concerns have now returned and they are unlikely to go away - see The Guardian 23rd February 2011.

19 January, 2011

In December 2010 the Chilcot Inquiry set out a list of witnesses to be heard in the early part of 2011 - see Watching the Law "Chilcot to take further evidence in early 2011." The list included former Prime Minister Blair. Lord Goldsmith QC - who was Attorney-General at the relevant time was asked to provide further written evidence and it may be read on the website of The Guardian 17th January - Goldmith statement in full.

Goldsmith admits to being "uncomfortable" about the stance Blair was taking having received Goldsmith's initial advice that UN SCR 1441 (November 2002) would not, in itself, justify military action. Despite this advice, Blair informed the House of Commons that there were "circumstances" in which a second resolution was not necessary. Three weeks later, Blair told BBC Newsnight that he would consider action if a UN SC member "unresaonably" vetoed a further resolution. As far as one can tell, this idea of the "unreasonable veto" has no basis in the UN Charter or elsewhere in international law. Eventually, Goldsmith changed his view about the legality of the military action. Goldsmith now claims that he was not sufficiently involved in the meetings and discussions about Resolution 1441 and the policy behind it that were taking place at ministerial level.

Who has said what to the Chilcot Inquiry?

24 November 2009 - Inquiry opens and Chilcot states it will not shy away from criticism when justified

25 November 2009 - Sir William Ehrman said that UK had received information that Saddam Hussein had dismantled his weapons of mass destruction (WMD) before the military action commenced in 2003

26 November 2009 - Sir Christopher Meyer testified that the Blair government never considered opting out of, or opposing, the Bush Presidency plan to invade Iraq

12 January 2010 - Alastair Campbell defended the dossier on Iraq's weapons programme. He also said that Blair had assured Bush that Britain would be there if the US attacked Iraq.

21 January 2010 - Jack Straw said that he had convinced himself "very reluctantly" that backing military action was the correct decision. [Note: Elizabeth Wilmshurst - Foreign Office Legal Adviser resigned having considered that an invasion would not be lawful].

29 January 2010 - Tony Blair confirmed to Chilcot that he had pledged military support at a meeting with President Bush in April 2002. Blair asserted that he had no regrets about the decision to go to war.

5 March 2010 - Gordon Brown (Chancellor of Exchequer in 2003) defended defence funding. Brown later admitted that defence funding had actually fallen in "real terms" in the 2 years Britain was at war in both Iraq and Afghanistan.

30 July 2010 - John Prescott (former Deputy PM) told Chilcot that at the time he felt that the Joint Intelligence Committee assessments contained conclusions based too much on too little evidence.

A further development relates to communications between Blair and Bush in the cruicial period leading up to the war. Citing national security, Sir Gus O' Donnell (Cabinet Secretary) has refused permission for the contents of these communications to be published - see Sir John Chilcot's opening remarks at the Inquiry session on 18th January 2011. It may be that this will have the eventual result of devaluing the final report of the inquiry. See also the CharonQC blog.

The Stain of Complicity in Torture:

Writing in The Guardian 18th January, Afua Hirsch (Legal Correspondent) looked at "The Stain of complicity in torture." The Equality and Human Rights Commission is seeking judicial review of certain "guidance" issued by the British government. In September 2010 the EHRC stated that the guidance might be unlawful.

About Me

I live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.